The Ombudsman's final decision:
Summary: Mrs B complains the Council did not take enforcement action against a noise nuisance, investigate her sighting of rats or follow its complaint procedure. Mrs B says she was constantly disturbed by noise. The Ombudsman has not found fault with the Council.
- Mrs B complains the Council did not take enforcement action against a noise nuisance, investigate her sighting of rats or follow its complaint procedure.
What I have investigated
- I have investigated how the Council responded to a noise complaint Mrs B made in 2018.
- I have not investigated a noise complaint Mrs B made in 2017. The final section of this statement contains my reason for not investigating the rest of the complaint.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- Ms B’s complaint and the information she provided;
- documents supplied by the Council;
- relevant legislation and guidelines; and
- the Council’s policies and procedures.
- The Council and Ms B commented on a draft decision.
What I found
- Councils must investigate complaints about matters which could be a nuisance covered by the Environmental Protection Act 1990. These include complaints about noise.
- The Council must decide if the nuisance substantially interferes with the complainant’s use of their property or if it is likely to injure their health. In other words, the Council must decide if the noise is a statutory nuisance.
- In deciding if a noise amounts to a statutory nuisance, the Council must take account of factors such as the frequency, duration and characteristics of the noise. The assessment is not based on decibel limits.
- If the Council considers the noise amounts to a statutory nuisance it must serve an abatement notice.
Council’s Investigation Noise Complaints Procedure
- The Council asks the complainant to keep a record of dates, times, description, duration of noise and how the noise is affecting them.
- If the noise is occurring frequently, or is judged by the investigating officer to be serious, the officer can arrange to visit to witness the noise while the complainant is completing noise diaries.
- The Council will contact the person making the noise once the investigating officer confirms they are the source of the noise and the issue needs investigating further.
- If the Council does not receive completed diaries within 21 days of the noise pack being sent, a phone call will be made to the complainant asking why diary sheets were not returned and whether they need assistance to complete the form. If there are no further problems with noise, the case may be closed. Should the complainant fail to return the diary sheets within a further 2 weeks of the telephone conversation the case may be closed.
Council’s Housing Services Complaints Policy
- The Council’s housing services complaints policy has three stages.
- Stage 1: A manager will respond to the complaint within 10 working days.
- Stage 2: A senior manager will respond to the complaint within 10 working days.
- Stage 3: The complaint is considered by a Resident Complaints Panel within 10 working days of the stage 3 request.
- At the end of January 2018, Mrs B made a noise complaint about property A. Mrs B said the noise was constant throughout the day.
- In February 2018, the officer assigned to the case visited property A and did not witness any noise.
- In March 2018, Mrs B reported seeing rats coming out of a school’s grounds. The Council explained that as there were no other sightings in the area, the matter would not be taken further. The Council advised Mrs B to report the matter to the school.
- In April 2018, Mrs B made a formal complaint about the Council not responding to her noise complaint. The Council replied and told Mrs B it logged her noise complaint in January 2018. The Council said a case officer was assigned in February 2018. The Council said officers had visited the location on several occasions and not witnessed a noise nuisance. The Council told Mrs B the case had now been reassigned to a senior enforcement officer.
- The senior enforcement officer contacted Mrs B. The officer said she would visit the address of the alleged noise nuisance. The officer asked Mrs B to ring or email her when she was disturbed by the noise so she could try to visit on that day. The officer said she would post noise diary sheets for Mrs B to complete.
- Officers visited property A 10 times, on three occasions within 30 minutes of Mrs B’s reporting noise, and could not hear any noise.
- In May 2018, the senior enforcement officer asked Mrs B to return her noise diaries. Mrs B told the senior enforcement officer she had returned noise diary sheets months ago. Mrs B asked the Council to write to the owner of property A to tell them it had received a noise complaint.
- The Council told Mrs B it had no record of her returning noise diary sheets in 2018. The Council said it had no evidence that property A was causing a noise nuisance. The Council explained its policy is not to contact the source of a noise complaint until it has evidence of a noise nuisance. The Council encouraged Mrs B to return her noise diary sheets and offered to collect them.
- Mrs B complained to the Council for losing her noise diary sheets from August 2017. There is no evidence the Council received these sheets and they are not relevant to the 2018 noise complaint. The Council responded to Mrs B’s complaint. The Council explained it needed her to return the noise diary sheets sent to her in April 2018. The Council sent Mrs B more noise diary sheets for her to complete and return.
- In June 2018, the Council closed Mrs B’s noise nuisance investigation. The Council had not witnesses a noise nuisance, Mrs B had not returned noise diary sheets and no complaints were received from anyone else in the area.
- Mrs B made a formal complaint to the Council about:
- its handling of her noise complaint;
- poor communication; and
- its handling of her report of rats being near a school.
- The Council explained many visits had been made to property A and officers had not witnessed any noise coming from property A. The Council said Mrs B still had not returned noise diary sheets. As the Council had no evidence of a noise nuisance it decided not to investigate the complaint further. The Council told Mrs B she could take her own civil action through the magistrate’s court.
- The Council found staff had responded to and acted when they received emails from Mrs B.
- The Council confirmed it gave Mrs B the correct advice when she reported seeing rats near a school.
- The Council followed its procedure when it responded to Mrs B’s noise nuisance complaint. The Council officers visited property A and did not witness a noise nuisance. Mrs B did not give the Council any evidence of the noise nuisance. No complaints were received about noise from anyone else in the area. The Council could only act if there was evidence of a statutory noise nuisance and in this case, there was not. The Council followed its complaints procedure when responding to Mrs B’s complaint.
- The Council gave Mrs B advice about the rats she saw near a school. The Council’s response was proportionate.
- I have completed my investigation and do not uphold Mrs B’s complaint. I have not found fault with the Council.
Parts of the complaint that I did not investigate
- I did not investigate a noise complaint made by Mrs B in 2017. The Ombudsman will not investigate complaints when someone takes more than 12 months to complaint to us about something a council has done unless there are exceptional reasons to do so.
Investigator's decision on behalf of the Ombudsman